Ana Maria M. Valderrama v. U.S. Atty. Gen. , 180 F. App'x 122 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14795 MAY 23, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A78-585-150
ANA MARIA MARTINEZ VALDERRAMA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 23, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Ana Maria Martinez Valderrama petitions for review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”)
order denying her application for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture (“CAT”). After review, we deny the petition for
review.
I. BACKGROUND
Valderrama, a native and citizen of Colombia, entered the United States in
April 2000 as a non-immigrant visitor with authorization to remain until October
2000. In October 2000, Valderrama, on behalf of herself and her husband Edgar
Fernando Reyes Acevedo, filed an application for asylum, withholding of removal
and CAT relief. Valderrama sought asylum based on her membership in the
Conservative Party and her work with the poor in Roldanillo, Colombia for a non-
profit agency known as “Association of Professionals of Roldanillo” (“ASPROR”).
In her application, Valderrama stated that she and her husband were singled
out by the guerrilla group known as the National Liberation Army (“ELN”). The
ELN made telephone threats at Valderrama’s home and the business she shared
with her husband, sent insulting notes to their home, painted a threatening message
on their house, watched their house and came to their home with a list of names.
Valderrama and her husband also were told by a restaurant owner that the ELN
intended to kill them.
2
The application also stated that Valderrama and Acevedo were intercepted
on the road by a van containing ELN members. The ELN members overtook them
by force, tied them up and drove them to an isolated area where there were other
prisoners. Valderrama claimed that she was “put with a group of women,” and
raped by an ELN member. The rapist informed her that the action was taken so
that she would not “bother them anymore,” and to set an example. The ELN
members then left, and the petitioners escaped at dawn and walked to town, where
they asked for and received help.
At a hearing before the IJ, Valderrama and Acevedo both testified regarding
the actions taken by the ELN against them, including the kidnapping, rape and
escape. In addition, Valderrama submitted the following exhibits: (1) a police
report filed by Valderrama and Acevedo in Roldanillo on October 25, 1999, stating
that the ELN had “mentally and physically tortured” them through phone calls,
death threats to employees on their ranch, spray painting their house in August
1999, learning that they were on a hit list in September 1999 and, on October 22,
1999, kidnapping them and raping Valderrama; (2) a letter from the public
prosecutor’s office in Roldanillo, stating that Valderrama and Acevedo were the
victims of “Extortion, Carnal Violation, Personal Injuries and Torture” at the hands
of the ELN; (3) a document from “San Antonio Hospital” stating that Valderrama
had been treated on October 25 and 26, 1999 for bruises, headache, insomnia
3
anxiety and depression, but making no mention of sexual assault or rape; (4) letters
from the Conservative Party affirming the participation of Valderrama and
Acevedo in the organization; (5) a letter from the City of Roldanillo stating that
Valderrama and Acevedo were registered with the city’s “community action
board”; and (6) copies of photo-identification ASPROR membership cards for
Valderrama and Acevedo and a document stating they were both members.
In an oral decision, the IJ denied asylum, withholding of removal and CAT
relief and ordered Valderrama and Acevedo removed. The IJ found the testimony
of Valderrama and Acevedo not to be credible, citing “gross inconsistencies
between both of their testimonies” and concluding that the documents submitted as
exhibits were “fraudulent or not authentic . . . .” The IJ specified the following as
some of the “many” evidentiary inconsistencies leading to an adverse credibility
determination: (1) the date and time of the alleged kidnapping and rape; (2) the
number of men in the van; (3) the type of weapons used; (4) the manner in which
the petitioners were tied up; (5) the existence of light and electricity inside the
house to which they were taken and the natural light outside of the house; (6) the
number and dates of the trips to the hospital following the alleged kidnapping; (7)
the number of days spent at Valderrama’s aunt’s house after the kidnapping; and
(8) the month the petitioners were notified they were on the hit list.
The IJ found in particular that the medical report and prosecutor’s report
4
were “clearly not valid” in light of the discrepancy between the petitioners’
testimonies as to the dates the documents were executed and the dates listed on the
reports. The IJ noted that the medical report did not mention a sexual assault, that
some of the letters appeared to have been printed on the same machine, and that
Valderrama and Acevedo contradicted each other as to whether the entities who
sent the letters were housed in the same building and thus could share the same
printer. The IJ also noted that the letter indicating that Acevedo was a member of
the community action board was inconsistent with his testimony.1 The IJ denied
asylum, withholding of removal, and CAT protection based upon his finding that
the kidnapping and rape “never happened.”
Valderrama appealed to the BIA, arguing that the IJ’s adverse credibility
finding was based on misinterpretations of the evidence, inadequate questioning
during the hearing and “minor” inconsistencies. The BIA adopted and affirmed the
IJ’s decision, stating that all of the inconsistencies noted by the IJ were “present
and material,” except the type of weapons carried by the men in the van, which the
BIA determined was “not a clear inconsistency.” The BIA noted that the
inconsistencies were numerous and “not just between the two witnesses, but also
with the asylum application.” The BIA also noted that Valderrama’s explanations
1
Although the IJ did not note this, the documentation indicated that Acevedo was also a
member of ASPROR, which is also inconsistent with Acevedo’s hearing testimony.
5
for the inconsistencies did not address the problem with her documents. This
appeal followed.
II. DISCUSSION
A. Asylum and Adverse Credibility
An alien who arrives in or is present in the United States may apply for
asylum. See 8 U.S.C. § 1158(a)(1). The Attorney General has discretion to grant
asylum if the alien meets the INA’s definition of a “refugee.” See 8 U.S.C. §
1158(b)(1)(A). A “refugee” is
any person who is outside any country of such person’s nationality . . .
and who is unable or unwilling to return to, and is unable or unwilling
to avail himself or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion.
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11 th
Cir. 2001).
To carry this burden of proving statutory “refugee” status, the alien must,
with specific and credible evidence, establish either (1) past persecution on account
of a statutorily listed factor, or (2) a “well-founded fear” that the statutorily listed
factor will cause future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d
at 1287.
6
An alien’s testimony, if credible, may be sufficient to sustain the burden of
proof for asylum. 8 C.F.R. § 208.13(a). “Conversely, an adverse credibility
determination alone may be sufficient to support the denial of an asylum
application.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11 th Cir. 2005).
Nevertheless, the IJ must still consider all of the evidence submitted by the
applicant, including documentation. Id.“Once an adverse credibility finding is made, the burden is on the applicant
alien to show that the IJ’s credibility decision was not supported by ‘specific,
cogent reasons’ or was not based on substantial evidence.” Id. When the IJ
enumerates an applicant’s inconsistencies and is supported by the record, we “will
not substitute our judgment for that of the IJ with respect to its credibility
findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 819 (11 th Cir. 2004).
B. Valderrama’s Claim
On appeal, Valderrama argues that the IJ’s adverse credibility determination
was not supported by substantial evidence. Upon review of the record, however,
we disagree.2
2
We review the BIA’s decision, “except to the extent that it expressly adopts the IJ’s
opinion.” Al Najjar, 257 F.3d at 1284. “Insofar as the [BIA] adopts the IJ’s reasoning, we will
review the IJ’s decision as well.” Id. Here, because the BIA’s opinion adopted the IJ’s opinion,
we review both opinions. In doing so, we review legal determinations de novo. D-Muhumed,
388 F.3d at 817. We review factual determinations, including credibility determinations, under
the substantial evidence test. Id. at 817-18. “To reverse the IJ’s factual findings, we must find
that the record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327
F.3d 1283, 1287 (11th Cir. 2003).
7
The IJ specifically enumerated the inconsistencies upon which he based his
adverse credibility determination and these inconsistencies are supported by the
record.3 Notably, Valderrama does not dispute that these inconsistencies appear in
the record. Rather, Valderrama argues that they do not constitute substantial
evidence because they are “minor” and do not “go to the heart” of her asylum
claim or because they can be explained by the fact that the events took place five
years earlier and under traumatic circumstances.
Although we have not directly addressed the issue, the Third Circuit and the
Ninth Circuit have indicated that an adverse credibility determination based on
inconsistencies must involve inconsistencies relating to the basis of the alleged fear
of persecution (i.e., “the heart of the asylum claim”) and that minor inconsistencies
about collateral matters or unimportant facts will not support an adverse credibility
finding. See Gao v. Ashcroft, 299 F.3d 266, 272 (3 d Cir. 2002); Chebchoub v.
3
Our review of the record indicates that all of the inconsistencies identified by the IJ have
support in the record with one exception. The IJ found that the prosecutor’s report was dated
one day before the medical report such that it contradicted Valderrama’s testimony that the
petitioners retrieved the medical report before filing a report with the prosecutor. However, the
record reveals that the report from the prosecutor’s office was dated October 26, 1999. The
police report stated that Valderrama was admitted to the hospital on October 25, 1999, and was
filed on that day as well. This one incorrectly identified inconsistency does not compel reversal
in light of the numerous additional inconsistencies correctly identified between the application,
the testimony, and documentary evidence.
8
INS, 257 F.3d 1038, 1043 (9 th Cir. 2001).4 However, neither of these circuits cite
any statute or regulation for this demarcation in credibility determinations or for
the proposition that inconsistencies must relate to the heart of the asylum claim. In
other non-immigration cases, this Circuit has not required a witness’s inconsistent
testimony to relate to the heart of the claim before the factfinder can disbelieve that
witness. See, e.g., Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228,
1231 (11 th Cir. 2004). However, we need not resolve this issue because the
numerous inconsistencies identified by the IJ do indeed relate to the events giving
rise to Valderrama’s fear of persecution and thus go to the heart of Valderrama’s
asylum claim. Specifically, the IJ identified inconsistencies relating to the key
incidents that form the basis of Valderrama’s asylum claim – the kidnapping, rape,
and escape – that led the IJ to conclude that those events never happened.
Therefore, the inconsistencies are material rather than minor.
Given the above-mentioned inconsistencies and the doubt they cast upon the
authenticity of some of Valderrama’s supporting documents, the record does not
compel reversal of the IJ’s adverse credibility determination. Further, the
4
Congress recently overrode these circuits’ precedent by enacting the REAL ID Act of
2005, which, among other things, amended the law regarding credibility determinations to
permit an adverse credibility finding based on inconsistencies “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim . . . .” See Pub.
L. No. 109-13, § 101(a)(3), 119 Stat. 230, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).
Because Valderrama’s asylum application was filed before May 11, 2005, the date the REAL ID
Act was enacted, however, these new provisions do not apply to her claim. Id. § 101(h)(2), 119
Stat. 230, 305.
9
documentary evidence does not compel the conclusion that Valderrama is eligible
for relief. See Forgue, 401 F.3d at 1287. As the IJ noted, the documents are of
questionable authenticity and do not show how Valderrama was singled out on
account of a statutory factor. Accordingly, substantial evidence supports the IJ’s
determination that Valderrama failed to establish eligibility for asylum.5
Based upon the foregoing, we deny the petition for review.
PETITION DENIED.
5
Because Valderrama did not present credible evidence that she is eligible for asylum,
she likewise failed to establish eligibility for withholding of removal or CAT relief. See Al
Najjar, 257 F.3d at 1292-93.
10